Woman with shh fingers and hand around man's head - adultery

In February 2020, Hollywood legend Kirk Douglas died at the truly magnificent age of 103. Most famous for his film roles as the slave Spartacus and the ambitious boxer in The Champion, Douglas was married to his second wife Anne Buydens for 65 years. (He had divorced his first wife, Diana Dill, in 1961.)

What made his second, long-lasting marriage exceptional was that Douglas had numerous affairs during that time. These included liaisons with top Hollywood stars Rita Hayworth and Marlene Dietrich, and rising stars of the day including Linda Darnel, Evelyn Keyes, Marilyn Maxwell, and Ann Sothern. He even had a one-night stand with Joan Crawford, which did not progress further!

Douglas never hid these affairs from his wife, who was quoted as saying:

“As a European, I understood it was unrealistic to expect total fidelity in a marriage."

However, this approach to infidelity is rare in our experience and takes away from the hurt and devastation that this can cause. Whilst some marriages do survive infidelity, for the majority it signifies the end of the road.


Grounds for divorce

At the current time, the single ground for a divorce in England and Wales is the irretrievable breakdown of the marriage. The spouse that starts divorce proceedings must establish that one of the following five facts has caused the marriage to break down:

  • Adultery
  • Unreasonable behaviour
  • Desertion
  • 2 years separation (with consent)
  • 5 years separation (no consent)


Adultery in marriage

You need to prove that your spouse has had sex with another person of the opposite sex to divorce on the grounds of adultery. Therefore if you are in a same sex marriage, you cannot neither commit adultery nor cite it as a fact. This in itself seems antiquated and unfair given that same sex marriages are now legal. How is adultery any more acceptable in those marriages?

For Mrs Douglas the second, proving adultery wouldn’t have been much of a problem. However, for many spouses it is difficult, impractical or too antagonistic, so the fact of unreasonable behaviour is used instead. If your spouse won’t admit the adultery, then you can still cite the adultery within the Unreasonable Behaviour petition.

If you do want to cite adultery, you must petition for a divorce within six months of first becoming aware of your spouse’s adultery, if you are living together. This is especially important if you are trying to give the marriage another chance. If you live with your spouse for a period exceeding six months, or periods together exceeding six months, you can’t petition for adultery. It is a strange quirk of law that you cannot petition for a divorce on the grounds that you yourself have committed adultery.


Naming the third party

As Resolution lawyers, we never recommend naming the third party, regardless of how tempting this is. This adds to the acrimony and hurt of already stressful proceedings. Furthermore, at LGFL we have advanced confidentiality checks. We ask from the outset whether any new clients have any connections to the firm, and would not act or advise in these circumstances.


No-fault divorce

The new Divorce Bill will sweep away the need for proof of adultery, or indeed any of the other facts. The new Bill will replace all these with the requirement of a statement made by one spouse that “the marriage has broken down irretrievably.”

This Bill is currently progressing through the House of Lords, but is meeting resistance as some believe it makes divorce easier. (Watch this space for a detailed article on the new Bill and its implications for divorce in 2020 and beyond.)


Proving adultery - the Brighton way

Divorce equality has been a hard-fought battle. In 1923, women were finally able to divorce on the same grounds as men, which was adultery. Then, as now, they needed to provide proof, and a whole ‘industry’ sprung up to provide an answer, a staged scene of infidelity in a seaside hotel. In his satirical novel “Holy Deadlock”, legal reformist A P Herbert’s fictitious solicitor advises a client on how he can hire a “well trained expert” to help stage a scene of adultery.

“As a rule, the gentleman takes the lady to a hotel - Brighton or some such place – enters her in the book as his wife – shares a room with her, and sends the bill to his wife. The wife’s agents cause inquiries to be made, and eventually they find the chambermaid who brought the guilty couple their morning tea.”


Coffee - grounds for divorce?

In 15th century Mesopotamia, a man could accept or reject a future wife according to how well she made coffee. However, once married, if her husband didn’t provide sufficient coffee for his wife, she could divorce him. The tradition still exists in Saudi Arabia that a wife can divorce her husband if he doesn’t bring her fresh coffee every morning.

The ancient Romans had a very simple divorce process. Couples only had to declare that they did not want to live together anymore in front of seven witnesses. The husband had to return the woman’s dowry, but only if she had not been found guilty of adultery.

There are still some archaic laws in individual US states regarding divorce, including:

  • A marriage may be annulled in Delaware if the couple got married as a joke or as a dare.
  • In South Carolina, if a man proposes to an unmarried woman just to have sex with her, he could be charged with misleading promises under the Offences Against Morality and Decency Act.
  • If a husband and his mother in law do not get on well in Kansas, his wife can file for divorce.
  • In Kentucky, you cannot remarry the same person more than three times.

By contrast, all 50 states in the US allow no-fault divorce. Seventeen US states will not allow the person filing for the divorce to blame their spouse in any way.

Long-lasting Hollywood marriages (at time of writing!)

  • Meryl Streep and sculptor Don Gummer (married 1978)
  • Tom Hanks and Rita Wilson (married 1988)
  • Will Smith and Jada Pinkett Smith (married 1997)
  • Hugh Jackman and Deborra-Lee Furness (married 1996)
  • Cindy Crawford and Rande Gerber (married 1998)
  • Sarah Jessica Parker and Matthew Broderick (married 1997)


Considering divorce?

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